Solomon v Green & Anor S105/2001 [2002] HCATrans 97 (5 March 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S105 of 2001

B e t w e e n -

DAVID SOLOMON

Applicant

and

BRUCE NOEL GREEN & DENISE ANN GREEN

Respondents

Application for special leave to appeal

GUMMOW J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 5 MARCH 2002 AT 12.25 PM

Copyright in the High Court of Australia

MR D. SOLOMON appeared in person.

MR G.J. NELL: If your Honours please, I appear with my learned friend, MS F.A. ROGERS, for the respondent. (instructed by Mr Ian B. Mitchell)

GUMMOW J: Yes, Mr Solomon. You appear for yourself?

MR SOLOMON: Good morning, your Honours. Your Honours, can I just hand this to your Honours. This is regarding my application to have the video and the television to be in Court, which was rejected because - I did want it because the whole case rests on the - - -

GUMMOW J: It does not, Mr Solomon. The whole case does not rest on that.

MR SOLOMON: It does not? All right.

GUMMOW J: The whole case rests on whether or not there was any appealable error in the decision of the trial judge, in particular his acceptance of the evidence of Associate Professor Frost.

MR SOLOMON: Yes, your Honour, I am not a lawyer or a barrister. Can I read what I have actually prepared so that you can - - -

GUMMOW J: Yes, very well.

MR SOLOMON: - - - which should not take more than 18 or 19 minutes. Firstly, I want to apologise to this highest of courts for not having legal representation. I realise it is foolish of me to represent myself in Court. I have no choice. I have tried extremely hard to obtain the services within the legal profession to act for me, but unfortunately I was unsuccessful. An application to the Bar Association for pro bono assistance proved futile and my application was not granted. Certain barristers wanted me to deposit between 10 and 20,000 commencement fees to their attorneys before they will begin acting for me. Your Honour, can I interrupt this for a moment? Am I speaking too loud?

GUMMOW J: No.

KIRBY J: No, we can hear you.

MR SOLOMON: Because I am partially deaf. I am partially deaf. I am an old aged pensioner and flat broke. A barrister and his attorney refused to assist me because of ethical grounds and because I persisted in raising grounds of, and I quote, "Fraud and serious misconduct against other members of our profession. He is disabled by the Bar rule and we, as instructing attorneys, are prevented by the solicitors' rules from acting in your matter." The case had, and is now, not conducted on a level playing field. Being a layman, I find it tremendously difficult challenging the experience and expertise of a barrister of the Supreme Court and of the High Court of Australia.

This whole trial, your Honours, has been a double-edged sword. On the one side, the plaintiff's legal representatives were crucifying me. On the other side, my legal representatives were performing dismally and incompetently. I am a citizen of Australia for the last 45 years. In the name of justice give me a fair go. The judiciary of Australia should, and must provide me, the legal assistance I deserve.

GUMMOW J: No, that is the problem of the executive government.

MR SOLOMON: Well, I will just carry on and if there is anything that I may be saying that is not right, I would be happy if you could stop me. Now, this is public importance and this is very, very important. No 1, that a court should give full weight to the visual evidence provided by the technical apparatus, to wit a camera, installed in the courtroom for the purpose of recording visual matters of conduct in the courtroom. It is a matter of public importance that the presence of such camera apparatus and its capacity to record conduct in the courtroom be fully publicised to the legal profession to deter any person minded to misbehave.

There has been more previous case in my research to show that such apparatus have been previously used to show such misconduct. The serious misconduct relied upon was highly relevant to the decision of the trial judge.

GUMMOW J: That is not right, you see. You look at page 8 of the application book.

MR SOLOMON: The application page 8?

GUMMOW J: Yes. Through to page 10.

MR SOLOMON: Yes.

GUMMOW J: In particular, page 10, line 50.

MR SOLOMON: Yes. Line 50, "if the invention was manufactured" - - -

GUMMOW J:

This finding is not dependent upon the demonstrations which were conducted in court.

MR SOLOMON: I will have an explanation there, your Honour.

GUMMOW J: That is the decision.

MR SOLOMON: Yes, I will have - yes, I will have an - - -

GUMMOW J: And what it was based on is the expert evidence, in particular that identified at page 8.

MR SOLOMON: This is all - I will show you as I am reading along.

GUMMOW J: Very well.

MR SOLOMON: Bear with me because, as I said, I am not a barrister. There are certain things that I could not discuss - - -

GUMMOW J: All I am putting to you is - - -

MR SOLOMON: Yes.

GUMMOW J: - - - these at the moment seem to me to be important matters.

MR SOLOMON: Yes. Then we have here now that the trial judge - - -

GUMMOW J: These points - these points as to how the trial judge decided the case.

MR SOLOMON: Yes. That the trial judge declined to view that evidence when the legal representative for the appellant, that is myself, sought to place the evidence before his Honour. The responsibility of the courts of law is to ensure that the fair administration of justice is a paramount concern to the administration of justice in Australia. The failure of the trial judge to allow the evidence of such film which was sought to tender as evidence to the trial judge available and to investigate the evidence strikes at the roots of the fundamental principle that not only must justice be done but it must appear to be done.

It is a matter of public importance that the High Court of Australia should consider the responsibilities of judges to utilise photographic evidence to ensure that there has been no failure and to show that the trial has been fairly conducted, and that evidence had not been tampered with and also misconduct by the other side's barrister can be proven. I will carry on now with the third thing.

Your Honours, the kernel of my case is that the invention - it is a patented lifting mechanism, which I sold the Greens, did work. The Greens allege it did not work. This is where I will be answering your question when you refer to the judge's findings.

From a reading of the transcript and his Honour Judge Terry Naughton's judgment, it is quite clear that the issue of whether or not the device worked was critical to his Honour's ultimate findings. Notwithstanding comments made by his Honour in his judgment that he did not rely on the demonstration in coming to his findings as to whether the device worked or not, it would seem apparent that his Honour was influenced in a number of respects by the fact that the device did not work at the time of the said demonstration. The device did work during demonstration prior to the inspection undertaken by Mr Green and his legal advisers.

An objective examination of the inspection undertaken by Mr Bell, the barrister, and Mr Mitchell, the solicitor, and Mr Green, the plaintiff, appears to suggest that the exhibit was interfered with, with the result that it did not work. Video recordings from the sheriffs office are available for you to view here.

Just before adjournment for lunch break - this is a critical point, your Honours - his Honour said - I am quoting this from day three page 83 in the trial - in the transcript, "Well, I'm not going to stop you, Mr McInnes, but I think as far as I am concerned the damage has been done." No one has produced any evidence and the state of evidence is such that although Mr Green and the manufacturers had problems, they made allegations it would not work.

No one has come along and said, "I had one of these seats and it did not work." I sold 450 of these innovative toilet seats when I market tested it in regional New South Wales in two weeks. A total of 30 seats were sold to Bennetts Plumber Suppliers in Bondi. The proprietor, Mr Amer Boden, said he wanted to buy more seats because no one came to complain to him about the seats. NB Sales had a slight problem with a new toilet bowl that Coroma brought out. They returned the seats. Adjustments were made and the seats worked, and they were returned to NBS warehouse in Melbourne.

Prior to Mr Green's purchase of my patent and trademark, five months he was helping me set up the jigs for assembly of the innovative seats. When I first met Mr Green he was mainly concerned with the assembly of the seats. When Mr Green seeked advice from his solicitor, Mr Mitchell, and his accountant, whether or not he should purchase the patent and trademark, they advised him against it because it would be too market intensive. Mr Green discussed the matter with friends and associates. They told him it would appear to be a good idea and, ultimately, he simply made up his own mind and purchased the patent and the trademark. And this is very important, the last paragraph on this page. Because of his inability to market the invention successfully after 14 months down the track, he then blamed the design of the invention.

Like all new designs, it is a "made to measure" item and it is not a universal fitting. Now, to one of the respondents main witness, a Professor Richard Frost, lecturer in engineering in the University of Kensington, New South Wales - I have to point out something here, before I proceed reading. I was a marine engineer myself and a practical engineer on ships, many many ships, and there is a distinction between these engineers that are university graduates, where they do not have a lot of practical experience, that they tend to say something off the cuff. I will proceed now.

Professor Frost gave an opinion of all the things that could go wrong. He mentioned such things as the unevenness of the top of the toilet seat. He did not go and have a look at toilet seats to see whether or not they were manufactured unevenly. But he then resorted to Murphy's Laws on the basis that he thought of things that could go wrong and if they could go wrong, they would go wrong. But it is not a realistic approach, and a very surprising one for an engineer. After all, if the test of whether something is likely to work is to be if something can go wrong, it will go wrong, we would not have computers.

If we go back further than that, we would not have motor cars and we would not have aeroplanes and we probably would not have ships and it is even doubtful if we had buggies, because there are things that can go wrong with buggies that are pulled by horses. Am I speaking too loud?

KIRBY J: No.

GUMMOW J: No, thank you.

MR SOLOMON: That is not the way to look at it. The proper way to look at it is to test it. Professor Frost did not test this innovative toilet seat on any bowl. Professor Frost does not criticise the main component which is the inventive - can you show it to them, thank you?

GUMMOW J: No, thank you.

MR SOLOMON: Professor Frost did not criticise the valve. That is the delay timer, the main innovative component of the invention itself. He says it could get clogged up in certain circumstances and he is saying that the idea would not work. He is saying it could get material in it, but that of course is not the test. There is an instruction sheet - which I will show you if you want to see it, your Honour - in every package informing the purchaser to keep the toilet seat clean.

Incidentally, I represented Australia in the Super Genius Convention in Japan and I am not putting epaulets on my shoulders. I received the highest award for Australia, by the world's second greatest inventor, and his name was Dr Yoshira Nakamasu. I expected to hear more from the professor, rather than an application called Murphy's Law.

Now, there is a slight twist here now which you will see that even in the transcript something went wrong. Professor Frost entered the courtroom during the inspection undertaken by Mr Green and his legal advisers on Wednesday, 16 August 2000. Mr Green's solicitor, Mr Mitchell, was aware that the professor had not tested the seat on a bowl. Mr Mitchell should have informed the professor that Mr Bell and Mr Green were conducting an inspection of the toilet seat, and this was an opportune time for the professor to go and join these two men in inspection. Mr Mitchell did not do that.

This is terribly unusual and suspect and throws into doubt the integrity and conduct of the counsel of court, Mr Ian Burnham Mitchell. I saw the gentleman walk past the conference room where I was with my legal representative, who I later recognised as Professor Frost, and this is evident in video 2, where you can see it.

KIRBY J: Yes, but the problem for you is that the judge made it absolutely clear that he did not rely upon the video - on the demonstration in court.

MR SOLOMON: Yes.

KIRBY J: He relied upon Professor Frost's testimony.

MR SOLOMON: Yes.

KIRBY J: And Professor Frost, who is an expert, said - - -

MR SOLOMON: No, he is not, your Honour. He is an engineer.

KIRBY J: Well, he is an engineer.

MR SOLOMON: Just like I am an engineer. There are many engineers and there is - - -

KIRBY J: Well, exactly. That is his area of expertise. He said that in his view your product was prone to difficulties and was not commercially marketable. Now, you hold to the other view.

MR SOLOMON: Yes, because - - -

KIRBY J: And I understand that you hold to the other view - - -

MR SOLOMON: Yes.

KIRBY J: - - - but the case went to trial.

MR SOLOMON: Yes.

KIRBY J: It was put up to the judge - - -

MR SOLOMON: Yes.

KIRBY J: - - - and the judge accepted Professor Frost's evidence - - -

MR SOLOMON: Yes.

KIRBY J: - - - and in those circumstances it is very difficult for you to come to an appellate court, who does not see you give your evidence, does not see Professor Frost, does not see all the other testimony in the case, and say, "Well, the judge was wrong." It is very hard to do that.

MR SOLOMON: Your Honour, I read it out just now that I went out test marketing. I have 15 letters of patents from different countries in the world: the United States, the United Kingdom, Russia, Japan and you name it, just down the road. Now - - -

GUMMOW J: The fact is, Mr Solomon, there are many patents that are granted - many patents that are granted - - -

MR SOLOMON: Yes.

GUMMOW J: - - - which, when it comes to commercial exploitation, it can involve all sorts of difficulties.

MR SOLOMON: Yes. We are not experiencing any difficulties, your Honour.

GUMMOW J: Well, that is one of the things - - -

MR SOLOMON: The panic started on 16 August - - -

GUMMOW J: If you do not want to listen to what I am saying - - -

MR SOLOMON: I agree with you, your Honour.

GUMMOW J: If you do not want to listen to what I am saying, Mr Solomon, I will not say any more.

MR SOLOMON: Okay. I agree with you in that respect. Your Honours, on 16 August I was told to demonstrate the seat twice by my counsel. The seat that I demonstrated was the only seat I have, and which is here. The seat worked perfectly well. Then the other side's barrister stood up - and, as I said, I am partially deaf. I was told to come down and go and sit down where - where I was sitting I am quite far, and the other side's counsel made an application to inspect the seat. Now, from any logical point of view there was no reason why he should be inspecting the seat, because - - -

KIRBY J: That is not true. What happened was quite common - - -

MR SOLOMON: Can I just - - -

KIRBY J: - - - because to understand the evidence lawyers often look at - - -

MR SOLOMON: Can I just drag on this, your Honour. The other side knew that I only had one seat. They had hundreds of seats that were assembled by myself, because with assembling this component part it had to do with - we had to calibrate it with a vacuum pump and I knew how it worked. As I said, I was an..... Now, the thing is he had a motive and the motive is what you see on the television. There is a lot of activities on the - - -

KIRBY J: You might say that, but the judge said that he was not concerned about the suggested breakdown at the time the matter came to trial. He was relying on what Professor Frost had to say.

MR SOLOMON: Exactly.

KIRBY J: Therefore, the whole issue of the breakdown at court was irrelevant and what happened on the video is irrelevant to the judge's conclusion.

MR SOLOMON: To the judge's conclusion it was irrelevant?

KIRBY J: Yes. He relied on what Professor Frost said.

MR SOLOMON: But, your Honour, I read earlier, regarding the visual evidence and the matter of public importance, your Honour. I attended the stay of judgment on 16 August, and Judge Terry Naughton - his Honour Judge Terry Naughton, when I was reading the affidavit and commenting on the affidavit by barrister, Mr Stuart Leslie Bell, he stopped me and he started to scream because I was criticising the affidavit, which I will show you - it is mentioned here a little bit.

Now, I have my doubts. I have a lot of respect for judges and all the men - I have been brought up in a very - my upbringing has been a good upbringing. I was in an Anglican school and I do not want to be discourteous to his Honour Judge Terry Naughton, but after this case I have been round to so many barristers and senior solicitors, consulting solicitors, and I was astounded at the reaction that these people had with Judge Terry Naughton.

KIRBY J: Well, anyway, I do not think that is a matter - - -

MR SOLOMON: Okay, I will not go into that.

KIRBY J: We are not dealing with generalities - - -

MR SOLOMON: I will not go into that.

KIRBY J: - - - we are dealing with this particular case.

MR SOLOMON: Yes, but what I am getting at, your Honour, is Professor Frost is an engineer, but the transcript will show you that he is not an expert in suction cups and delay timers. Whereas Mr Jean Last, which the affidavit is here, he is an expert in suction cups and his qualifications are even higher than that of Professor Frost. Now, what makes a man a professor in engineering or any other faculty - - -

KIRBY J: Well, I do not know, but the judge who saw Professor Frost accepted his testimony.

MR SOLOMON: Yes.

KIRBY J: And that makes it very difficult for you in an appellate court to get an appeal court, which does not see him, to override what he had to say.

MR SOLOMON: Yes, your Honour, but I also refer to you with public importance where the visual evidence, in many different ways, that there is an attitude here that it is criminality is involved, and it is not only that. I will read this as quickly as I can.

KIRBY J: Well, I think your time is up unfortunately.

GUMMOW J: You have reached your time.

KIRBY J: But we have had your written submissions and we have read them carefully and we understand the way you put the submissions to the Court.

MR SOLOMON: Can I just say one other thing before I finish off?

GUMMOW J: Yes.

MR SOLOMON: And do I have another one or two minutes?

KIRBY J: Two, no more.

MR SOLOMON: All right. Now, in the Court of Appeal where their Honours Justices Giles and - - -

KIRBY J: Meagher.

MR SOLOMON: - - - Meagher were - and I will just read it. He said that he supports the proposition, after having looked at the video, that this did not even take place. Now, that is very - it is very erroneous. It is an error of judgment, and the video that I had with me when I was playing it, I tried to explain it to him step by step, he cut me short. He said, "Mr Solomon, keep quiet and sit down."

KIRBY J: Well, I think you have been given a fair hearing today.

MR SOLOMON: Thank you very much, I appreciate it.

GUMMOW J: We do not need to hear you, Mr Nell.

The decision of the trial judge in the New South Wales District Court was based upon certain expert evidence which his Honour accepted to found a finding that certain failures were likely to occur frequently in practice if the invention in question was manufactured and sold commercially. His Honour stated that this finding was not dependent upon demonstrations that were conducted in court. The Court of Appeal dismissed Mr Solomon's appeal and there are no prospects of success in any further appeal to this Court. Accordingly, special leave is refused with costs.

The Court will adjourn until 10.15 am tomorrow at Canberra.

AT 12.48 PM THE MATTER WAS CONCLUDED